Shop Rite Foods, Inc.

National Labor Relations Board - Board Decisions

Feb 5, 1980

247 N.L.R.B. 883 (N.L.R.B. 1980)

SHOP RITE FOODS, INC.
Shop Rite Foods, Inc., Employer-Petitioner ad
United Food and Commercial Workers Internation-
al Union, AFL-CIO, Local 1564.' Case 28-UC-96
February 5, 1980
DECISION ON REVIEW AND ORDER
By CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On July 9, 1979, this unit clarification petition was
filed by the Employer. The petition sought clarifica-
tion of three existing units, represented by the Union
in certain of its stores in New Mexico, by excluding a
total of four individuals as supervisors within the
meaning of the Act.2 On August 10, 1979, after a
hearing, the Regional Director issued a Decision and
Order in which he determined that unit clarification at
that time would be disruptive of the collective-bar-
gaining relationship.
Thereafter, pursuant to Section 102.67 of the
Board's Rules and Regulations, Series 8, as amended,
the Employer filed a timely request for review of the
Regional Director's Decision and Order, urging, in
essence, that the Regional Director departed from
precedent in finding the UC petition was untimely
filed. On September 20, 1979, the Board granted the
request for review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case and makes the following findings:
At the time the most recent collective-bargaining
agreement was reached, on October 20, 1976, both the
Union and the Employer acknowledged that the
assistant managers were supervisors within the mean-
ing of the Act. The parties voluntarily agreed, how-
ever, as part of the settlement of a strike occurring
while negotiations on the contract continued, to allow
these four individuals to continue to be covered by the
agreement if they so chose. All four subsequently
opted to be included in their respective bargaining
units. The parties stipulated at the hearing that all
four are now, and have been since before October 20,
1976, supervisors within the meaning of Section 2(11)
of the Act. The Regional Director, noting the volun-
' On June 7. 1979, the Retail Clerks International Union and the
Amalgamated Meatcutters and Butcher Workmen of North America merged,
forming the United Food and Commercial Workers International Union,
AFL-CIO. The name of the Union herein, formerly Retail Clerks Interna-
tional Association, Local 1564, has been amended to reflect this change.
' The four individuals, all of whom are designated comanagers or assistant
managers by the Employer (hereinafter assistant managers), are Albert
Quintana and Epifanio Ulibarri, both of whom were covered by the
247 NLRB No. 143
tary agreement of the parties to include these disputed
individuals in the units covered by the contract, found
that their exclusion during the term of the contract
would be disruptive of the collective-bargaining rela-
tionship, and he accordingly dismissed the petition.
In its request for review, the Employer points out
that the petition was filed just 101 days prior to the
expiration of the then-current 3-year contract. The
Employer contends that this filing, near the expiration
date, was timely. It argues that the cases relied upon
by the Regional Director found UC petitions inappro-
priate when filed in the early or middle stages of a
contract term, and thus are not controlling in the
instant case. We find merit in the Employer's conten-
tions.
It is clear that the Board does not lack authority to
clarify a bargaining unit established by agreement of
the parties. Manitowac Shipbuilding. Inc.. 191 NLRB
786 (1971). While the Board has refused to process
unit clarification petitions where they would be
disruptive of voluntarily continued bargaining rela-
tionships, it has stated that it does so without
prejudice to the filing of a clarification petition at an
appropriate time.' Ordinarily, such petitions are ap-
propriately filed shortly before the expiration of the
collective-bargaining agreement. At that time, when
the parties are preparing for negotiations on a new
contract, unit clarification may spare them an unnec-
essary labor dispute. As we noted in Arthur C. Logan
Memorial Hospital, ' a petition filed 90 days prior to
expiration of the agreement was processed by the
Board in Beth Israel Medical Center. ' The petition in
this case was only slightly earlier filed, and we
conclude that it should have been processed.
Having determined that the petition was erroneous-
ly dismissed, we shall order that it be reinstated. On
the basis of the parties' stipulation, and in the absence
of any evidence to the contrary, we find that the four
assistant managers are supervisors within the meaning
of the Act. In these circumstances, we shall clarify the
unit as sought by the Employer-Petitioner.
ORDER
It is hereby ordered that the petition in Case 28-
UC-96 be, and it hereby is, reinstated, and that the
existing units of employees be clarified to exclude as
supervisors the assistant managers.
Albuquerque collective-bargaining agreement; Leo Padilla. whose employ-
ment was covered under the Taos agreement; and Ben Sanchez, who worked
under the Los Alamos agreement.
Wallace-Murray Corporation. Schwitzer Division. 192 NLRB 1090 (1971):
Arthur C Logan Memorial Hospital. 231 NLRB 778 (1977).
*231 NLRB at 779, fn. 4.
229 NLRB 295 (1977)
883